DiPasquale v. State

• Decision Date: 15 October 1979
• Docket Number: No. 34,34
• Citation: 43 Md.App. 574,406 A.2d 665
• Parties: Dale James DiPASQUALE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 574

43 Md.App. 574

406 A.2d 665

Dale James DiPASQUALE v. STATE of Maryland.

No. 34.

Court of Special Appeals of Maryland.

Oct. 15, 1979.

Domenic R. Iamele, Baltimore, with whom were Morton C. Pollack and Levy & Iamele, Baltimore, on the brief, for appellant.

William H. Kenety V, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Sandra A. O'Connor, State's Atty. for Baltimore County and Stephen M. Schenning, Asst. State's Atty. for Baltimore County, on the brief, for appellee.

Argued before MOYLAN, MELVIN and WEANT, JJ.

MOYLAN, Judge.

The appellant, Dale James DiPasquale, was convicted in the Circuit Court of Baltimore County in a court trial of possession with intent to distribute PCP and possession of marijuana. Upon this appeal, he raises the single contention that the judge erroneously refused to suppress the physical evidence. Reluctantly, we must agree.

The logic which compels this result will be more apparent if we begin at the end of the search and seizure sequence and work back to the beginning. Following his street arrest at 2:50 a. m. on April 17, 1978, the appellant was taken to the Essex Police Station. At the station, a routine search incident to the arrest was conducted. It produced eight small bags of PCP. If the arrest was lawful, the search incident thereto and the seizure of the PCP was reasonable. If, upon the other hand, the arrest was unlawful, the search incident thereto and the seizure of the PCP was unreasonable. "At the very threshold of search incident theory, the search must be incident not merely to an arrest but to a Lawful arrest." Dixon v. State, 23 Md.App. 19, 26, 327 A.2d 516, 520 (1974). We must, therefore, look backward to the arrest.

The appellant had been arrested warrantlessly a few minutes earlier for the unlawful possession of marijuana. Although legitimate peripheral observations established the likelihood that the appellant was Under the influence of Some drug, the necessary factor and the precipitating factor in this case for the arrest for Marijuana possession was the seizure from the appellant's shirt pocket of what the officer, upon observing it out in the open, had probable cause to believe was a bag of marijuana. If the seizure of the bag was constitutional, the ensuing arrest was lawful. If the seizure of the bag was unconstitutional, the arrest must fall. The marijuana would have to be suppressed as the direct produce of the unconstitutional seizure and the PCP would have to be suppressed as the tainted fruit of that "poisonous tree." Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Everything hinges upon that initial seizure, so we turn to the consideration of it.

What immediately preceded the seizure of the bag was, according to the State's interpretation, a mere accosting of the appellant by the police or, according to the appellant's interpretation, a stop within the contemplation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It makes no difference which it was. Either would represent legitimate, reasonable police behavior. Neither would have served, upon the facts of this case, as an adequate predicate for the ensuing seizure. Even assuming a valid stop by the lights of Terry, what followed was not a frisk. The officer articulated no reasonable suspicion that the appellant was armed; the partially observed marijuana pouch was thought by the officer to be a tobacco pouch; indeed, the State did not at trial and does not now seek to justify the seizure upon a frisk rationale. "Frisk" law simply has no bearing on this case. A legitimate accosting of a citizen by a policeman or even a legitimate stopping and questioning of a citizen does not, Ipso facto, confer any right to reach into a citizen's pocket and remove something from it. That additional intrusion requires its own distinct justification.

The only arguable justification here is that the object in question was in open view. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). As the State seeks to analogize the ensuing seizure to a Plain View Doctrine ¹ seizure, as legitimately it may, the flaw in its argument is its neglect of the requirement that there be a nexus or probable cause to believe that the thing seen in plain or open view is actually evidence of crime in order to justify its warrantless seizure.

In this case, the officer, armed with the reasonable suspicion that the appellant was intoxicated by drugs, noticed a plastic baggie partially protruding from the top, zippered portion of the appellant's jumpsuit. The officer further observed enmeshed within the folds of the baggie a few grains of what appeared to him to be cigarette tobacco. On cross-examination, the officer acknowledged that at the time he seized the baggie, he did not know nor even suspect that it contained anything other than cigarette tobacco. There is nothing in this record demonstrating that the officer here believed that the bag which he observed partially in open view was evidence of crime. This critical element of nexus or probable cause for a warrantless seizure was well articulated by Judge Levine in State v. Wilson, 279 Md. 189, 195, 367 A.2d 1223, 1227 (1977):

"(I)t was not 'immediately apparent to the police that they (had) evidence before them.' This element, in essence, amounts to a requirement that police have probable cause to believe the evidence is incriminating before they seize it. As the court said in United States v. Gray, (6th Cir.) Supra, 484 F.2d (352) at 356, '(I)t must be "immediately apparent" to the police that the object is in fact incriminating or the seizure of the object would be without probable cause and would turn the search into a general or exploratory one.' (citations omitted)"

That the facts here might have established probable cause for an arrest of the appellant, even before the baggie was seized, and for a good search incident thereto which would have produced the baggie is beside the point. No arrest was made until after the seizure and the arrest was predicated on the observation of the thing seized.

In the alternative, that the visual, olfactory and auditory observations preceding the actual seizure might have been enough to give some other officer probable cause to believe that the partially...